Edward J. Volpintesta: Fixing the malpractice system

Edward J. Volpintesta

Published 5:11 pm, Tuesday, February 5, 2013

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On Thursday, Jan. 25 at 8:30 p.m., an informative TV program aired on Channel Thirteen's "Need to Know" program. The program "Do No Harm and Danish Medical Courts" focused on how medical malpractice lawsuits are handled in the U.S. and compared it to Denmark's system.

It reported that one in 14 doctors is sued every year in the U.S. and 60 percent of doctors over age 55 have been sued at least once.

Although most of the suits against doctors are dismissed, the legal costs are high. It costs about $22,000 to defend a case that is settled out of court and about $100,000 for those that go to trial.

Lawyers say that they have to sue many of the doctors involved in a suit not because they are all negligent, but to get information on what actually happened. But this is little consolation to physicians who are hit with malpractice suits in which they have not done anything wrong because even unjustified malpractice suits can drag on for several years before they are dismissed.

But, during that time, injured patients have to wait for the monies they need and physicians have to endure the fear of public condemnation and harm to their reputations and livelihoods.

As a result, the threat of lawsuits terrifies most physicians and they practice defensive medicine by ordering extra tests as a defense in case a suit is filed.

Not only does defensive medicine raise the cost of care about $126 billion a year, or about 5.5 percent of the total amount spent on health care, but also it can expose patients to risky biopsies and medications.

Ironically, in some instances patients who suffer medical malpractice do not sue the physician(s) involved.

Clearly, the complexity of modern medicine, the pressure on physicians to be perfect, and patients' expectations that physicians will be perfect have made the handling of malpractice suits a dilemma -- and so far no solutions that are acceptable to all have been found.

There are three sides to this dilemma.

First, patients want compensation when negligence is clear and even they believe that it may be.

On the other hand, physicians believe that even if they did their best in caring for a patient, they can be sued because bad results do occur and the results can be devastating not only for the patient, but also for them as well.

Finally, there are some instances in which malpractice occurs and patients do not file suits.

The fundamental problem with the current system is its adversarial approach. It pits doctors against patients. One wins and one loses.

Sadly, and regardless of who wins the suit, the result is a loss of trust between doctors and patients.

But there are ways to control this approach which does more harm than good.

Health courts and accelerated mediations are two methods that are being discussed. Both use court-appointed neutral experts, which eliminates the "hired gun" criticism that often surfaces against these experts, the litigation process is considerably shortened and decisions are reached and monies are given to injured parties in months, not years.

It is noteworthy that in Denmark where the health system is government-sponsored, no one goes bankrupt paying for medical bills. Patients are actually helped by their physicians to file a malpractice complaint. And the suits are settled out of court by a panel of lawyers, doctors, and administrators.

And about 30 times more patients receive compensation. Patients wait about six to seven months to receive compensation. The average payout is about $50,000 with a limit of $2 million.

Whatever one may think about the way malpractice is dealt with in Denmark, if the U.S could keep malpractice lawsuits out of the courts as Denmark does, then it would have taken a giant step forward in fixing the current system.